[HPFGU-OTChatter] Re: That case and that book

[Lee Kaiwen]

The last point first, since it is what I've spent the most time on:

Me:

 > Finally, a question: I would be very curious to know
 > whether the "fictional facts" determination has been
 > specifically cited as precedent in any other court
 > decisions.

nrenka:

 > '150 F.3d 132' into Google and see what
 > you get. This case has been cited repeatedly as
 > precedent.

Yes, it has. But my question was whether the "fictional facts" 
distinction *specifically* has been referenced as precedent? I've spent 
hours online wading through references to Castle Rock, and while it is 
true that 150 F.3d 132 has been widely cited generally, I have been 
unable to find another case that so much as takes note of, let alone 
relies specifically on, Castle Rock's "fictional facts" determination.

I did, however, stumble across William Patry's blog entry of Nov. 1, 
2007. Patry's blog describes him as "Senior Copyright Counsel, Google, 
Inc., Formerly copyright counsel to the U.S. House of Representatives, 
Committe on the Judiciary, [etc.]"

(williampatry.blogspot.com/2007/11/harry-potter-lexicon-suit.html)

In the comments section below the article, an anonymous poster says, 
"Copyright law distinguishes between real-world 'facts' and the imagined 
'facts' an author creates in making up a story". Patry's response 
largely echoes my own feelings that though Castle Rock made the 
distinction, it constituted neither a substantive nor a central (is that 
redundant?) argument in the court's decision.

"[T]he Castle Rock court noted the distinction you make but declined to 
wade into it. For myself, I find the distinction not determinative in 
the context of the [RDR/SVA] Lexicon" (unfortunately, Patry doesn't 
explain *why* :-( ).

Patry further notes that Castle Rock has been recently criticized, and 
refers to 292 F. 3d 512, 523 (Ty, Inc. v. Publications International Ltd.).

Me:

> (First, a note. I don't find the words "details of a piece of
> fictional expression" in the text of the decision.

nrenka:

> I'm allowed to paraphrase, nu? :)

Of course! But then I'm also free to wonder (even perhaps aloud) whether 
your paraprhase accurately reflects the original intent :-)

Me:

> In my reading it seems so very clear that it was
> the transformative issue which played the major role.

nrenka:

> The major role, yes. But only after the qualitative analysis 
 > has been used to note that the material IS infringing.

But in Castle Rock the trivia book failed BOTH the qualitative AND 
quantitative tests. So even without the fictional facts distinction it 
is likely the Second District would have found for infringement on 
quantitative grounds. In short, the distinction does not appear to have 
been critical even within Castle Rock.

 > I'm arguing that given the Castle Rock precedent,
> JKR's claim that much of the Lexicon is infringing material is
> supported.

I'm questioning whether the "fictional facts" distinction *is* a 
precedent. Just because a court of law renders a decision, determination 
or distinction does not ipso facto make that determination a legal 
precedent, let alone a binding precedent. Wikipedia has an interesting 
discussion of legal precedent at: 
http://en.wikipedia.org/wiki/Legal_precedent

 > This argument is the foundation for the rest of the
> argument (over transformation vs. derivation), which 
 > actually makes it even more important, I think.

I don't see this. The "fictional facts" distinction informed only the 
2nd Circuit's application of the qualitative test. Beyond that, 150 F.3d 
132 makes no further reference to or use of the distinction.

Castle Rock's makes clear that its determination on the transformative 
issue was based on the similarity of purpose of the trivia book, and 
that has nothing to do with the "fictional facts" distinction.

> They did not, in the trial, really challenge the accusation
> that they've massively infringed

At this point I think we must be reading different trial transcripts. 
First, of course, the defense certainly DOES deny infringing -- that's 
what the whole case is about, after all. I suspect what you meant to say 
was "massively copied".

Secondly, defense even denies "massively copying"; "paraphrase", 
"summary", etc. But I don't see anywhere in the transcripts where they 
acknowledge "massively copying" JKR's work.

Me (quoting Wikipedia):

 > "The court rejected defendant's arguments holding that any
 > transformative purpose posed by the book was slight or non-
 > existent. It concluded that the purpose of the book was to
 > entertain ... much the same purpose as the television show."

Magpie:

 > But can someone tell me if I'm right in thinking that
 > basically this is exactly what JKR believes can be said
 > about the Lexicon's book? That essentially it is like
 > reading the SAT in that the point of the SAT was that the
 > entertainment value lay in knowing the facts, just like in the
 > Lexicon?

Sorry, I'm not going to answer your question precisely, as I'm still 
sloughing my way through the trial transcripts, but of course plaintiffs 
believe and claim a lot of things. Defendants believe and claim a lot of 
(unsurprisingly) contradictory things. But the only real point is what 
the *judge* believes.

I think in the case of the Lexicon that argument is harder to make. As 
Carol has admirably demonstrated, the Lexicon DOES add value, in the 
very least the value of culling, distilling and systematizing facts 
scatterized throughout the series into a single concise entry. Even 
absent any scholarly analysis or commentary, *is* a value. A consulter 
of the lexicon would be spared the hours or days of work necessary to 
repeat that task, and would likely discover stuff he would otherwise 
have missed (for example, material culled from JKR interviews).

Now, *you, I or nrenka* may not feel this is a value, and the plaintiffs 
are certainly trying to poo-poo the argument, but it's difficult for me 
to see how the court could legally distinguish this kind of value from 
others which do determine fair use.

 > Like, that an entry about a fantastic creature is
 > entertainment the same way her FB book is

This one, I think, is easy. I just can't imagine a lot of folk running 
out to consult the Lexicon for entertainment purposes. And that's a key 
distinction: it's not that some might not find the Lexicon entertaining, 
but to say that some folk use it for entertainment is not at all the 
same as arguing that the intended *purpose* of the Lexicon is entertainment.

CJ